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Duche v. Buffalo Grape Sugar Co.

11 Abb. N. Cas. 233 Court N. Y. Supreme Court, First District; Special Term, English

Delivered by Potter, J.

Contents

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DUCHE v. BUFFALO GRAPE SUGAR CO.
N. Y. Supreme Court, First District; Special Term,
September, 1882.

Headnote

Place of Trial.—Action against Domestic Corporation.—Waiver of Right to Change by Failure to Move.
Although an action by a non-resident against a domestic corporation must be brought in the county designated in its certificate of incorporation as the place where its principal office is to be located, its right to have it so brought may be waived,—e. g., by failure' to move within fifteen days after service of a demand to change the venue to the proper county.
It seems, that Code Civ. Pro. §§ 781-783,—providing for enlarging time and for relieving from omission to do an act within the time prescribed by law,—are not available to relieve the defendant from the omission to make such motion within the required time; but, if otherwise applicable, they could not be invoked in the absence of any reason, excuse or explanation of the delay.
Upon a motion to change the place of trial to the proper county, no regard can be had to the convenience of witnesses; but a motion may thereafter be made on that ground.
Motion to change the place of trial from the city and county of Few York, to the county of Erie.
Bowen, Rogers & Locke, and F. J. Fithian, for motion.
Mitchell & Mitchell, opposed.

The motion is made upon the ground that the place of trial in this action is governed by section 984 of the Code of Civil Procedure. The

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action doubtless belongs to the class of actions provided for by that section. The plaintiff is a non-resident, and the defendant is a domestic corporation organized under the act of 1848. By the terms of the certificates of the defendant filed in the office of the clerk of Erie county, and in the office of the secretary of state, the city of Buffalo and the county of Erie were designated as the places where its principal office of business was to be located, and its operations were to be carried on. The defendant, therefore, had the right to have the trial take place in Erie county. But such right is not an absolute right, and is in no sense jurisdictional, and hence may be waived (section 985).

To secure the enjoyment of such right, and to prevent a waiver of it, section 986 provides that the defendant must demand to have the trial take place in the county of his 'residence, and if the plaintiff does not serve a written consent to the change required within five days after service of such demand, the defendant may serve a notice of motion to the court to compel the change. The demand in this case was served on July 12. The plaintiff neglected or refused to consent to the change, and on August 14 the defendant served notice of his motion. I think the motion was out of time, and must for that reason be denied. The statute is clearly permissive of the motion, provided the motion is made in a certain manner and within the prescribed time.

Under the former Code, section 126, there was no limitation of the time in which the motion to change the. place of trial to the proper county could be made, and accordingly it was held, under that statute, that such a motion could be made at any time before trial (Hubbard v. National Protection Ins. Co., 11 How. Pr. 149 ; Conroe v. Same, 10 Id. 403).

But a change was made by section 986 of the Code of Civil Procedure,' requiring the service of notice of

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motion to compel the change, to be made within ten days after the expiration of the five days. I think it plain that the legislature intended to change the law in this respect. One purpose doubtless was, while affording the defendant a reasonable opportunity to have the trial in the county of his residence, yet to require him to make his election seasonably, so that it should be known and settled in what county the trial was to take place, that the action might be placed upon the calendar of the county where it was tobe tried, and to prevent dilatory efforts and motions to change the place of trial from an earlier calendar in one county to a later calendar in another.

It was urged upon the argument of the motion that sections 781-783 enlarging time,. &c., might be resorted to to relieve the defendant. From the view I take of the sections in question I do not think they can be made available for that purpose. But if those sections could be applied to this question they could not be applied in the absence of any reason or excuse or explanation of the defendant’s delay in making the motion. Section 781. provides for enlarging the time upon showing ground therefor, and before the time to do- an act has expired. Section 783 provides that after the time has elapsed in which a<p act is to be done, the court may grant relief upon good cause shown. This is not an application for leave to make a motion for relief; and if it were, the affidavits show no grounds or good cause for granting the relief desired.

Of course, upon a motion to change the place of trial to the proper county, no regard can be had to the convenience of witnesses. If the defendant thinks the convenience of witnesses would be subserved and the ends of justice promoted by a trial in Erie county, he is at liberty to make a motion to change the place of trial upon those grounds.

Motion denied.

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